A legal battle over a Hilo property, a century-old land deed and the separation between church and state will go before the Hawaii Supreme Court this week.
In 1922, the then-Territory of Hawaii sold a roughly 4.5-acre parcel of land in Keaukaha to Heber J. Grant for $20. Grant, a trustee for The Church of Jesus Christ of Latter-Day Saints, was given a land patent for the property with the condition that it be used “for Church purposes only” — any other use of the land would void the agreement and revert the land to the Territory of Hawaii.
Decades later, that deed to the property — now subdivided into five parcels at the intersection of Kalanianaole Street and Onekahakaha Road — was transferred between various owners and holding companies until it entered the possession of Hilo Bay Marina LLC in 2000.
In 2015, Hilo Bay Marina split off one of the five parcels and transferred its ownership to Keaukaha Ministry LLC. However, court documents indicate that David Owens is both president of Hilo Bay Marina and manager of Keaukaha Ministry.
While it is unclear if the land was ever used for any church purpose since 1922, the parcels are currently vacant.
In 2022, Owens’ companies sued the state, arguing that the restriction on the land requiring that it only be used for church purposes violates both the Hawaii and U.S. constitutions.
In particular, they argued that the restriction violates the establishment clauses of both constitutions; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” reads the Establishment Clause in the U.S. Constitution’s First Amendment.
“By requiring the property to be used for church purposes only, the church purposes restriction “aids all religions,” thereby violating the Establishment Clause,” reads an argument by the plaintiffs. “(The U.S. Supreme Court) has, in no uncertain terms, repeatedly confirmed that the Establishment Clause forbids both state and federal governments from aiding all religion to the exclusion of non-religion.”
Through the lawsuit, Owens argued that the court should void the restriction and allow the land to be used for secular purposes.
However, the state of Hawaii and the Board of Land and Natural Resources argued that the restriction was “a primitive form of zoning” that is legally permissible as a historical practice, and produced examples of similar deed restrictions as evidence.
The plaintiffs’ counterargument noted that the state could not identify any secular purpose for the church-use restriction, whereas other seemingly religious observances made by governments — closing on Sundays, for example — are permissible because they simultaneously fulfill a secular goal, such as providing a regular day of rest.
Furthermore, the plaintiffs argued, the county’s zoning designation for the property, Resort-Hotel District, already allows for, but does not require, church use.
Third Circuit Judge Henry Nakamoto ultimately ruled in favor of the state in 2023, which Owens’ companies appealed. The state Supreme Court was scheduled to hear oral arguments on the case Tuesday.
Clint Hamada, an attorney representing Owens’ companies, declined to comment, while Owens could not be reached for comment.
